United States v. Regalado-Flores

*Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
June 25, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-40198
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAVIER REGALADO-FLORES, also known as Pedro Sanchez,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(No. 5:04-CR-1387)
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before STEWART, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Javier Regalado-Flores appeals the 24-month sentence he received following his guilty-plea
conviction for illegal reentry, in violation of 8 U.S.C. § 1325. The Guideline range with the
“aggravated felony” enhancement was thirty-three to forty-one months’ imprisonment, but the
statutory maximum under 8 U.S.C. § 1325 was two years. This court previously affirmed the
sentence of Regalado-Flores. United States v. Regalado-Flores, 185 F. App’x 397 (5th Cir. 2006).

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1Regalado-Flores also reserves for review his contention that “an error in the application of
the Guidelines that results in use of higher sentencing range should be presumed to affect the
defendant’s rights.” United States v. Knight, 266 F.3d 203, 207 (3d Cir. 2001). This argument is
foreclosed by circuit precedent. See United States v. Wheeler, 322 F.3d 823, 828 n.1.
2
The Supreme Court vacated and remanded the case for reconsideration in light of Lopez v. Gonzalez,
127 S.Ct. 625 (2006). Regalado-Flores v. United States, 127 S.Ct. 1147 (2007). Following the
Supreme Court's remand, we requested and received supplemental letter briefs from both parties
regarding the impact of Lopez.
Regalado-Flores argued for the first time in his petition for certiorari that the district court
erred by characterizing his prior state felony convictions for possession of a controlled substance as
“aggravated felonies” for the purposes of U.S.S.G. § 2L1.2(b)(1)(C), thereby enhancing his sentence
by eight levels. This court will not consider a Lopez-related challenge raised for the first time in a
petition for certiorari absent extraordinary circumstances. United States v. Taylor, 409 F.3d 675, 676
(5th Cir. 2005).
Regalado-Flores argues that this court’s holding in Taylor is not controlling because it is
contrary to earlier precedent in this circuit and plain error is therefore the proper standard of review
in this case.1 See United States v. Kubosh, 120 F.3d 47 (5th Cir. 1997). He concedes, however, that
he cannot make the necessary showing of plain error that is required by our precedent in United
States v. Mares, 402 F.3d 511, 521 (5th Cir.), cert. denied, 126 S.Ct. 43 (2005). Without the
“aggravated felony” enhancement, the applicable Guideline imprisonment range for Regalado-Flores
is twenty-four to thirty months, which overlaps with the twenty-four months actually imposed by the
district court in this case. Regalado-Flores has failed to carry his burden of establishing that the error
affected his substantial rights. See United States v. Villegas, 404 F.3d 355, 363-64 (5th Cir. 2005).

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3
The district court could, on remand, impose the same sentence. See United States v. Wheeler, 322
F.3d 823, 828 (5th Cir. 2003). Alternatively, it is not reasonably probable that, but for the district
court’s misapplication of the Guidelines, Regalado-Flores would have received a lesser sentence
because the correct Guideline range and the statutory maximum overlap. See United States v. Garza-
Lopez, 410 F.3d 268, 275 (5th Cir. 2005); Villegas, 404 F.4d at 364. Because Regalado-Flores fails
to show plain error, he also fails to meet the much more demanding standard of extraordinary
circumstances. See Taylor, 409 F.3d at 677.
Accordingly, we conclude that nothing in the Supreme Court’s Lopez decision requires us to
change our prior affirmance in this case. Therefore, we reinstate our judgment affirming the
defendant’s sentence.

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